30 September 2022 – Online conversation
The event promoting the Central European Professors’ Network coordinated by the University of Miskolc – Central European Academy was a conversation between one of the members of the above Network – Professor Bartosz Majchrzak (the Cardinal Stefan Wyszyński University in Warsaw, Poland) with a former judge of the Polish Constitutional Court Professor Zbigniew Cieślak and an expert of this court – assistant judge specializing in case law, Professor Aleksandra Syryt. The subject matter of the talks was the possibility to derive the so-called public subjective right to the environment being in an appropriate state, i.e. clean, healthy, ecologically safe or generally – optimal in terms of nature – from the Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws No. 78, item 483, as amended; hereinafter the “Constitution”). In particular, an attempt was made to answer the following questions: 1) What is the constitutional (public) subjective right? 2) In which cases does the Constitution form the basis for deriving a subjective public right ? 3) Are there any grounds in the Constitution for distinguishing a public subjective right to a clean (healthy) environment ? 4) What legal consequences (would) arise if ‘everyone’s right to live in a clean (healthy) environment’ were provided for in the Constitution?
The normative background of the talks was mainly constituted by several provisions of the Constitution, from which the following are derived: the obligation to protect the environment imposed on the Republic of Poland, public authorities and ‘everyone’ (Articles: 5, 74 (2) and 86); other duties of public authorities – to conduct a policy ensuring ecological security for the present and future generations (Article 74 (1)) and prevent the negative effects of environmental degradation on health (Article 68 (4)); the everyone’s right to be informed about the state and protection of the environment (Article 74 (3)); admissibility of limiting the constitutional rights or freedoms of an individual on the grounds of ‘environmental protection’ in accordance with the principle of proportionality (Article 31 (3)). Interpretation of the above-mentioned regulations in the context of the constitutional public subjective right of an individual to the environment (clean, healthy i.e. optimal) is quite a complex issue. This is confirmed in particular by the literature on the subject, where extremely diversified views in the discussed area can be found. According to some authors, the Constitution is not the source of the subjective right to the environment (cf. eg. Ciechanowicz-McLean, J. (2021) ‘Ochrona środowiska w Konstytucji Rzeczypospolitej Polskiej a globalne problemy środowiska’ [Environmental protection in the Constitution of the Republic of Poland and global environmental problems], Doradztwo Prawne i Podatkowe RB BIULETYN, 37(8), p. 7; Habuda, A. (2019) ‘The Right to the Environment in the Republic of Poland’, Studia Prawnoustrojowe, no. 44, pp. 108, 111, 112 and 119). In the opinion of other authors, it constitutes the basis for deriving such a right, the content of which, however, is also sometimes understood in various ways (cf. eg. Korzeniowski, P. (2012) ‘Bezpieczeństwo ekologiczne jako instytucja prawna ochrony środowiska’ [Ecological security as a legal institution for environmental protection], Łódź: Wydawnictwo Uniwersytet Łódzki, pp. 173, 177; Haładyj, A. (2002) ‘Konstytucyjne prawo do korzystania z wartości środowiska’ [The constitutional right to use the environment], Prawo i Środowisko, no. 2, p. 37; Trzewik, J. (2016) Publiczne prawa podmiotowe jednostki w systemie prawa ochrony środowiska [Public subjective rights of an individual in the system of environmental protection law], Lublin: Wydawnictwo KUL, pp. 238-239).
The heterogeneity of views presented above, as well as the underlying ambiguity in the provisions of the Constitution in the field of subjective right to the environment, were the grounds for interviewing people whose professional career was or is related to the Constitutional Court. The following findings emerge from these conversations:
First of all, attention should be paid to conceptual issues, in particular serious problems to define the concept of public right and subjective right. An absolute prerequisite for agreeing positions in the field of public subjective right to the environment is the use of unified terminology and referring to the same ‘level of generality’. This, however, is missing in the doctrine, case law, and even in the political or ordinary, everyday talk. Another important element is the difficulty in interpreting the provisions of the Constitution resulting from their specific nature. Namely, they feature different levels of detail – some of them are very general and other – very specific. This influences the diversity of interpretation results, especially with respect to provisions of general nature. Such provisions represent the so-called program norms, as well as norms defining the tasks and principles of the state policy. Environmental laws are examples of such general constitutional norms. Therefore, it is so difficult to answer the question whether a certain subjective right i.e. an individual’s right or claim can be derived from them, and what consequences such norms may have for public authorities.
Undoubtedly, the environment is a value protected in several provisions of the Constitution, including those that shape the state system and the legal status of an individual in the state. Therefore, it can be concluded that the Constitution sets a certain standard for public authorities with regard to the enactment and application of environmental law. The subjective right, however, is not expressly provided for in the Constitution. Even Article 74 (3) of the Constitution, which provides for the right to information on the environment, and thus being, to a certain extent, of specific nature, requires to be specified in a subordinate normative act. For this reason, even this constitutional provision alone does not guarantee the subjective rights of an individual. In other words, the construction of subjective rights should be seen through the prism of a legal norm created not only on the basis of the Constitution, but also of laws and other normative acts. This shows the importance of terminological and methodological issues. The result of the analysis depends on the adopted semantic convention and interpretation assumptions. This result is also influenced by the understanding of the absolutely fundamental category, namely the State as a community of communities made up of various communities and rights and obligations of citizens. Therefore, we must also assume that there may be a conflict of interest between the communities, and this in turn results in doubts as to the legitimacy of distinguishing the individual’s public subjective right.
The thesis that in the Polish Constitution there is no public subjective right to the environment is additionally justified by the fact that the legislators having noticed and appreciated environmental issues deliberately did not formulate the above-mentioned right despite the possibility of doing so. Moreover, even when they distinguished the ‘environmental’ right to information on the state of the environment (Article 74 (3) of the Constitution), they also limited the possibility of it reaching the statutory framework, and therefore did not want to give it the rank of a constitutional subjective right. Given such a restriction, the spontaneous derivation of this right from the Constitution could be risky from the point of view of normative consistency. It cannot be ruled out that after the Constitution has been in force for twenty-five years, the environmental regulations would require rethinking or even changing, especially in the light of deterioration of environmental problems since the entry into force of this normative act. Nevertheless, the distinction of the constitutional subjective right to the environment should for now be perceived in terms of de lege ferenda postulates.
The possible implementation of this postulate, however, requires prior reflection on the essence of the Constitution itself and its provisions. This necessitates answering the question whether such regulation should be of more general nature leaving more room for interpretation to the authorities applying the law, or whether it should specify all aspects that require protection. In the latter case, a doubt arises about excessive casuistry. Additionally, normative content derived from the “good environment” can be derived from the currently binding constitutional provisions. This applies in particular to the legal protection of life (Article 30 of the Constitution) as it also embraces a healthy environment. Article 68 of the Constitution and the resulting right to health protection can be assessed in a similar way. This circumstance also undermines the need to establish a new subjective right to the environment.
In the constitutions of some European countries such as Hungary, Serbia, the Czech Republic and Slovakia, everyone’s right to a favorable or healthy environment is expressly stipulated. If similar regulations were introduced in the Constitution of the Republic of Poland, they would undoubtedly open the possibility of lodging a constitutional complaint or application to the Constitutional Court on the grounds of a violation of this right. It would also make it possible to directly refer to such a constitutional regulation as part of claims sought before common courts. Nevertheless, such a general formulation of a constitutional right would probably require further clarification by the authorities applying the law thus possibly making the right in question become subject to relativization. Also, the constitutional subjective right to the environment could also constitute the basis for an extraordinary complaint lodged with the Supreme Court as it may be brought against a final and binding ruling of a common or a military court concluding the proceedings in a given case if the said ruling violates (inter alia) “the principles or freedoms and rights of human and citizen specified in the Constitution” (Article 89 (1) of the Act of 8 December 2017 on the Supreme Court, Journal of Laws of 2021, item 1904, as amended).
In conclusion, the Constitution does not expressly provide for a subjective right to a well-functioning environment, much less define it as a public right which can be enforced against public authorities. At the same time, the discussion participants assessed rather positively the scope and content of the currently binding constitutional regulations relating to the environment in the context of the omission of the discussed subjective right of an individual. The fact that the environment appears in relatively many provisions of the Constitution makes it necessary to recognize the appropriate state of the environment as an important constitutional value. This means that this state of affairs is approached with special care by the authors of the Constitution, which obviously sets a certain standard of conduct for the authorities that make and apply the law. While it would have some positive effects to expressly provide for everyone’s right to the environment in the Constitution, it is, however, also possible to indicate a number of doubts related to such a potential change in the legislation.
I hereby confirm that the report has been proof-read by Magdalena Porembska, PhD, linguist and translator.
Bartosz Majchrzak, Associate Professor, author of the report
I hereby confirm that I have proof-read and linguistically revised the report. I declare that the translation has been verified for grammatical correctness and use of scientific English.
Magdalena Porembska, PhD, linguist and translator
